United States: Top 10 FMLA Mistakes — And How To Avoid Them

Last Updated: June 14 2018
Article by Nonnie L. Shivers

The federal Family and Medical Leave Act (FMLA) can be daunting but many answers are found within the FMLA regulations themselves. Despite many courts' attempts to make the FMLA into the next statute where attorneys utter the dreaded answer of "it depends," some common mistakes can be avoided by learning from the schadenfreude-esque experiences of others, as illustrated below.

1 Failing to Meet Employer Obligations

The FMLA places many technical obligations on employers, and even the simplest mistakes can result in legal liability. A few of the most common mistakes can be readily cured by employers: posting the most updated FMLA poster at every worksite; having an FMLA policy and distributing it (via handbook if one exists); advising employees in writing whether their request for leave is approved or denied, including all required designation notices, within the limited time frame required by the FMLA; properly tracking FMLA and advising of the amount of leave remaining when requested; and not retaliating or interfering with an employee's right to take FMLA leave.

2 Not Including All Time Worked When Calculating FMLA Eligibility

Remember that the employee's actual workweek is the basis for determining FMLA leave entitlement. Specific categories that may ultimately need to be factored into FMLA eligibility calculations include overtime, working lunches, and temporary work for the company.

3 Not Recognizing a Request for Leave

There are no magic words required for an FMLA leave request and the right to take FMLA leave is not limited to medical emergencies. If you need more information from the employee to determine whether the absence might be covered, then ask. Even general reports of something that looks like a serious health condition may be sufficient to trigger FMLA obligations. For example, if the employee's sick log identifies a "headache" where the employee has a history of migraines, be aware that this potentially may be an FMLA-qualifying condition or request for leave.

4 Failing to Give an Employee the Chance to Provide Certification

Employees have 15 calendar days after the employer's request to provide certification from a health care provider to support the employee's need for FMLA leave. Keep in mind that at the same time as the request for certification is made, employers must also advise employees of the consequences of failing to provide an adequate certification.

5 Calculating the Amount of FMLA Used With the Incorrect Increment

The FMLA requires that leave be calculated using the smallest increment of time and actual days worked. Employers are required to allow employees to use FMLA in the smallest increment allowed for other leave. The increment may be weeks, days, hours, or even less than an hour. However, it is permissible to exclude days an employee would not be scheduled or expected to work. Examples include weekends, temporary plant closures, furloughs, and holidays.

6 Requiring Inflexible Notice Procedures

An employer can (and should) require compliance with its customary notice procedure for absences but there are caveats. Because the FMLA states the notice is due "as soon as practicable," however, there are circumstances in which employees may be entitled to leave, even if notice was given outside the employer's prescribed period or methodology. When determining whether notice was given in a timely manner, take into account whether the need for leave was foreseeable and the facts and circumstances of the particular case. Be flexible where the circumstances call for it.

7 Making Derogatory Remarks About an Employee's Use of Leave

Derogatory remarks can be the basis of a finding of intent to retaliate. For example, in a case in which an employee was suspended without pay the day after returning from leave and ultimately was fired, the employee stated a claim for FMLA retaliation because his supervisor had told him he was on "thin ice" and he was "burying himself" by making an FMLA request.

8 Treating an Employee Differently Before and After Leave

An employee may potentially have grounds for a retaliation claim if he or she is subjected to stricter scrutiny after returning from leave or where the employee receives a poor performance review after returning from leave while reviews before the leave were good. Though a performance appraisal should reflect poor performance where it exists, the standards by which the employee is being judged should be the same as those used before the leave.

9 Keeping Time-Sensitive Goals Steady

Failure to reasonably adjust goals and standards downward to account for the leave period can result in an FMLA retaliation claim. For example, an account executive who took intermittent leave stated a claim for retaliation where her employer failed to adjust her sales goals to account for the time she was on leave and then based the decision to terminate her employment on her failure to meet the unadjusted sales goals.

10 Carefully Investigate Perceived Abuse

In a recent poll, 65 percent of companies stated that intermittent FMLA leave is taken unpredictably. However, not every deviation from the original certification is indicative of abuse. Employers should be vigilant but tread carefully. Employers can reduce the risk of abuse by making sure to get medical certification, clarification and verification of the condition, periodic recertification, recertification when usage significantly differs from the original certification, and information on any changed circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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